002-NLR-NLR-V-30-MILLER-&-CO.,-v.-GOVERNMENT-AGENT,-PROVINCE-OF-UVA.pdf
( « )Present: Drieberg J.
1928.In the Matter of an Application for a Mandamus on the
Government Agent of the Province of Uva.
MILLER & Co. v. GOVERNMENT AGENT,PROVINCE OP UVA.Excise Ordinance—Local option poll—Notice of poll—Irregularity—Mandamus.
Where & poll for local option was held without notice being givento the public as required by rule 6 of Excise Notification No. 146,—
Held, that the poll was invalid.
A
PPLICATION for a writ of mandamus commanding therespondent to hold a fresh poll for local option respecting
the hotel bar licence held by the petitioners on the ground thatthe poll held on N6vember 7, 1927, was null and void. Thepetitioners, who are the proprietors' of the Bandarawela hotel,stated that they had no knowledge till November 6 that theirbar licence was included in the poll. They further complained
1 (1913) 2 Matara Cases 144.* (1920) 2 C. L. See. 180.
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that the voter’s list was prepared without notice to the public 1928*and that notice of the poll had not been given in conformity with stiller * Co.the requirements of rule 6 of Excise Notification No. 176.memAgent
A. Hayley, K.C. (with him J. R. V. Ferdinands), for petitioner.
—The petitioners attack the poll on the following grounds :—
That the voters’ list was prepared without notice to the
public.
That “ at least 20 days’ notice of the poll ”—rule 6 of Excise
Notification No. 146—had not been given by publication
in “ one or more local newspapers.”
That copies of the notice of the poll had not been affixed
at the places specified in rule 6 in due time.
That the poll though required to be open at 8 a.m. did not
in fact open till 10 a.m.
The objections arising out of rule 6, namely, objections (2) and
, vitiate the poll. Buie 6 makes “ at least 20 day’s notice ”imperative. The poll was held on November 7, publication ofthe notice was made in the issue of the Ceylon Daily News ofOctober 21, and according to the affidavit filed on behalf of therespondent copies of the notice were not affixed at the placesmentioned in rule 6 till November 1, 2, and 3. The provisionsas to time contained in rule 6 have been ignored; non-observanceof the provisions as to time renders the poll null and void. Counselcited Mandamus on the Government Agent, Northern Province.1
[Dbieberg J. indicated that he considered it unnecessary atthat stage for Counsel to go into the other grounds of objection.]
L. M. D. de Silva, Deputy Solicitor-General (with him J. E. M.Obeyeselcere, C.C.), contra.—Therehave undoubtedly been
irregularities. Irregularities do not necessarily vitiate a poll(Woodward v. Sarsons,2 Islington3). Want of notice can have noeffect other than the non-registration of votes of the voters whohad no notice. More than 6ft per cent, have registered their votesand the votes remaining unregistered could not have affected theresult of the poll. The possibility that the electorate would havebeen canvassed during the few days by which the notice fell shortis too remote for serious consideration.
Hayley, in reply.—The cases cited on behalf of the respondentare decisions under the Ballot Act of 1872; that Act expresslyprovided that mere non-compliance, only with the rules relatingto elections shall not invalidate an election. There is no similarprovision in the Excise Ordinance or in any of the numerous.
1 28 N. L. R. 323.* (1875) L. R. 10 C. P. 743.
3 (1901) 5 O'M. <fc B. 125.
1988.
MHIer A Co.
v. Govern-ment Agent,Province ofOva.
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Excise Notifications. As to Lord Coleridge’s dictum in Woodward,v. Sarsons (awpra), the Common law of England relating to Parlia-mentary elections cannot apply in Ceylon.
•Tune 21,1928'. Dbibbebg J.— v
The petitioners move for a writ of mandamus for a declarationthat the local option poll held on November 7, 1927, be declarednull and void and that the respondent be commanded to arrangefor and hold a poll in conformity with the provisions of ExciseNotification No. 146. The petitioners are Messrs. Miller & Co.,Ltd., who are the proprietors of the Bandarawela hotel and are theholders of a hotel bar licence for the sale of foreign liquor at thehotel.
The result of the poll was that out of 817 voters on the list537 voted for abolition and 7 for retention ; the result of the pollwas to abolish the petitioners’ licence with effect from thecommencement of the next rent period after November 7, 1927.
The petitioners state that they had no knowledge until November5, 1927, that their hotel bar licence was to be included in this poll.The notices stated that the licences for which the poll was to beheld were the “ Bandarawela foreign liquor taverns, Bandarawelabar licences, Bandarawela beer and porter, Kahatawela toddytavern." 0 There is no special mention of the Bandarawela hotel,and the manager of the hotel says that he was not aware thatthe hotel bar licence would be effected by the poll until he wasso informed three days before the election by a post card fromthe Assistant Commissioner of Excise.
The petitioners complain that the poll.was irregularly held andthat it is null and void for the following reasons:—(1) That thevoters’ list was prepared without any notice to the public who hadno means -of knowing of its existence and that in the result thenames of many eligible voters were omitted from it; (2) Thatthe notice of the poll as required by section 6 of the rules had notbeen duly given; (3) That the notices required by rule 6 to befixed at the Police Court of Bandarawela, the Village Tribunal,and other places were not fixed within the time required; (4)That the poll though required and advertised to be open from8 a.m. to 7 p.m. did not in fact open till 10 am.
The rules regulating local option polls are contained in ExciseNotification No. 146 published in the Government Gazette of August14, 1925. Rule 6 which provides for notice of a holding of a pollis as follows :—
“ The poll shall be held at such place and on such date betweenOctober 1 and December 15, as the Government Agentshall determine. At least 20 days’ notice of the poll
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shall be given by publication in one or more local 1928,newspapers by fixing oopies of the notice at the Kachcheri, Drisbebothe local Police Court, and the Village Tribunal, within J-the jurisdiction of which the area- is situated, and at Miller <fc Oo.prominent places within the said area, and by beat of _tom-tom or such other method as the Government Agent province ofshall direot. The notice shall state the names of the &***•villages comprised in the said area.”
It is dear from the affidavit of Mr. Bond, the Office Assistantof the 1st respondent, that there was a complete disregard of the'provisions of this rule as to time. In computing-the period ofnotice of “ at least 20 days ” the day of the notice and the day ofthe poll should be excluded and the notice should therefore havebeen published not later than October 17. Mr. Bond, however,admits that the notice in the Ceylon Daily News was publishedon October 21, that the notices were posted at the Village Tribunaland the Police Court on November 1, and at other prominentplaces as required by the rules on November 2 and 3. The peonof the Police Court says that the notice was posted at the Court-house on the morning of the election.
It is not necessary to consider the other grounds of objection,,for this complete failure to comply with the requirements of rule 6makes the poll null and void. It has been so held in the case ofan application for a writ of mandamus on the Government Agentof the Northern Province,1 where the question earose regarding anelection held under the Village Communities Ordinance, No. 9 of1924. The Deputy Solicitor-General referred me to the cases ofWoodward v. Sarsons2 and Islington3 and to the general rule statedin references to these cases in Rogers on Elections, 19th ed.,p. 254, that to whatever extent the provisions of an Act ofParliament are violated, even wilfully, which does not enact thatthe consequences of those acts avoid the election, the electionwill not be invalidated. These cases, however, deal with the actualconduct of an election as regulated by the rules in the first andsecond schedules to the Ballot Act of 1872 (35 <fe 36 Viet. c. 33), .section 13 of which is as follows :—
“No election shall be declared invalid by reason of a non-compliance with the rules contained in the First Scheduleto this Act, or any mistake in the use of the forms in theSecond Schedule to this Act, if it appears to the tribunalhaving congnizance of the question that the election wasconducted in accordance with the principles laid downin the body of this Act, and that such non-complianceor mistake did not affect the result of the election.”
1 (1927) 28 N. L. R. 323.* (1875) L. R. 10 O. P. 743.
J (1901) 5 O'M <k H. 125.
1828.
Diubbehq
J.
Miller. As Cov. Govern,ment Agej}/Province ofVva. '
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It was stated by Lord Coleridge C.J. in Woodward v. Sarsons(supra) that section 13 was “an enactment of extreme cautionstating as law what was equally law before,” the earlier law being, . what is known as “ the Common lawof Parliament,” i.e., the Commonlaw applicable to Parliamentary elections.
We have not in Ceylon, so far as I am aware, any Common law
governing public elections in such matters as this or in electionsfor representative bodies, for all such elections have their originin legislative enactment.
The question is therefore simply one of the effect of non-compliance with a statutory requirement which cannot be regardedas other than^essential. The Deputy Solicitor-General contendedthat there would be no purpose in holding another election pollas out of a total of 817 voters 537 voted for abolition and that
C
it was not possible therefore to turn the scale. This, however,cannot affect the validity of the election, but it may be contendedthat .the result would have been different if the petitioners hadadequate notice and an opportunity of persuading voters.
In the view I have taken of this matter it is not necessary toconsider the objections taken to the regularity of the voters’ list.After I reserved judgment I indicated to Counsel the opinionI had formed and heard them on the form the order should take.
The. application for the holding of a poll in this case was madeon June 29, 1927, under rule 2 of Excise Notification No. 146and was for the year 1927. Under rule 6 the poll had to be heldbetween November 1 and December 15, 1927, and if successfulthe licence would be abolished at the end of the then currentlicensing year, viz., September 30, 1928. If this was a case of anelection which was needed to fill an office which could not beallowed to be vacant, the court could set aside the election alreadyheld and issue a mandamus for the holding of another electionregardless of any statutory provisions as to the time when such anelection should be held.
The present case is different, for the election can only be heldon the demand of certain .persons. I am not sure that an electioncan now be held on the requisition made on June 29, 1927, for apoll for the year 1927, and I cannot therefore direct a mandamusin terms of the prayer in the petition. The respondent to thisapplication is Mr. Codxington, who was at the time the GovernmentAgent of Uva, and he has been succeeded by Mr. Walters, whoseproxy has been filed. The Deputy Solicitor-General agreed thatI should make him a party to this "application, and he has beenadded as the 2nd respondent. The abolition or continuance of alicence does not lie with the Government Agent, whose dutiesend with holding the poll and reporting the result to the properauthorities.
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Order will therefore be made on this petition declaring the pollheld on November 7, 1927, to be null and void and commandingthe 2nd respondent to report to the proper authority that the saidpoll has been declared null and void by this Court, and that thehotel bar licence held by the petitioners for the BandarawelaHotel has not been abolished as the result of the said poll for therent period commencing next after the date on which the saidpoll was held.
The 1st respondent will pay to the petitioners the cost of theseproceedings.
On the day on which this matter was listed for Counsel to beheard as to the form of the order, Mr. A. B. Cooray desired to beheard on behalf of certain persons who had interested themselves• in the abolition of this licence. They were voters and had, I wastold, represented their party at the election. Mr. Cooray saidthat one matter which he wished to urge was that a mandamuscould not issue, because rule 15 gave the presiding officer a statutorypower to decide all questions arising in connection with the ballot.It was not possible to allow these persons to intervene at that stage,and I refused the application.
1928.
DmBJBBEQ
J.
Miller <fo Oo-v. Govern-ment Agent,Province ofXJva.
Rule absolute.